The plaintiffs in American Iron v Glover Agency, et al asserted claims of malpractice and breach of contract against our client, a commercial insurance broker. The claim arose from the alleged failure of the broker to obtain a business interruption endorsement on a commercial fire policy.
When the plaintiffs failed to serve an affidavit of merit as required under New Jersey law, Sean X. Kelly of our New Jersey office successfully moved for summary judgment. Plaintiffs appealed the matter to the Appellate Division.
Plaintiff argued that the affidavit of merit requirement did not apply to a breach of contract claim, as opposed to a malpractice claim. Plaintiffs also argued that the common knowledge doctrine applied as an exception to the AOM requirement.
And affirming the dismissal, the Appellate Division accepted the defense arguments that the nature of the claim was one of professional negligence, regardless of the superficial label of breach of contract. Moreover, the court recognized the inherent complexities in understanding the excess and surplus marketplace thereby rejecting the common knowledge argument.